This week Supreme Court made history. On September 6, 2018, it decriminalised sex amougst consenting adults in private. It rightly corrected its own error in the judgment of Suresh Kumar Koushal, pronounced on that ominous day, 11.12.13 [December 11, 2013], when it set aside the judgment of the Delhi High Court in Naz Foundation. The Delhi High Court had in that seminal judgment read down Section 377 and had decriminalised sex between consenting adults in private. The Supreme Court has in fact effect now restored the Naz Foundation judgment of the Delhi High Court. The Koushal judgment of the Supreme Court rendered in 2013 has been specifically overruled.
The Court, through all the four judgments of Chief Justice of India, Dipak Mishra and Justices Khanwilkar, Nariman, Chandrachud and Malhotra — all concurred on a number of key points. The judgment holds that Section 377, to the extent it criminalises sexual acts between consenting adults in private is in violation of Articles 14 and 15 (equality and discrimination); Article 19 (Fundamnetal Freedoms) and Article 21 (privacy and dignity). Very importantly, the judgment notes that it is not the popular morality but constitutional morality which will would prevail. And constitutional morality is the values enshrined in the Preamble: Justice (social, economic and political), Liberty, Equality and Fraternity.
They emphasised that the all the members of the LGBTQI communities, like all other persons, are entitled to exercise all the Fundamental Rights guaranteed in our Constitution. Just because they may a small minority does not mean that their rights need not be protected as Koushal had held. They pointed out that they are entitled to the protection their identities as held in NALSA. They held that sexual orientation is a prohibited ground of discrimination. Privacy and dignity are fundamental to the protection of the all Fundamental Rights and autonomy is at the root of all which confers the fundamental right to choice.
Additionally, the judgment notes that in a liberal democratic constitutionally governed society like ours, the majoritarian impulses cannot dictate social mores but that minorities views and differences have to be tolerated. The court also notes that its judgment is in line with international law as it is developing and in accordance with India’s international commitments under various treaties. The court has also issued directions that the judgment be publicised widely and government officers are sensitised to the issues in the judgment. Moreover, the Court found that society should render an apology to the persons wrongly persecuted under Section 377. However, the Court made it clear that the judgment would be prospective in its operation.
With the judgment of the Supreme Court this week, we, in India, have attained our second freedom. For, the LGBTQI communities continued to be persecuted after independence under Section 377. Now the judgment has at last has freed all of us from that yoke of the colonial law in the form of Section 377.
This is indeed a watershed moment in our society. It augurs profound changes in our society. It will usher in a new India, an inclusive India, which is indeed, the need of hour. The message of the Court is clear on this point. The LGBTQI communities can now walk tall and openly with with their heads high and proudly as equal citizens as promised by the Preamble of the Constitution. But it is not only a victory for the LGBTQI communities. It is for all those who cherish the values enunciated in the Preamble to our Constitution. These values of justice, liberty, equality, fartenity and dignity apply across the board to all. They need to be preserved and continuously nourished by us all. An injury to anyone in repect of any of those values is an injury to all. That is why today’s judgment is so important.
A lot of people, including us at Lawyers Collective, have waited a long time for this day. Victory could not have been sweeter than this after years of struggle and after many setbacks. Though the wait was a long one, from 2001, it has been well worth it.
It was in 2001 that Naz Foundation filed the writ petition in the Delhi High Court through the legal team in the Lawyers Collective. The Delhi High Court dismissed it on the ground of maintainability. In the challenge to that order of the High Court, the Supreme Court firmly said that the matter must be decided on merits and not technicalities.
Ultimately, the Delhi High Court in the seminal judgment, Naz Foundation, pronounced the decriminalisation of sex between consenting adults in private. Well reasoned and deep in its understanding, it liberated the LGBTQI communities from the yoke of Section 377 imposed by the British. Freedom dawned for a large group of, especially, young gay men who proudly came out.
Unfortunately, the High Court victory was short-lived because the Supreme Court in Suresh Kumar Koushal trumped it. But Koushal was short-sighted, narrow and unreasoned in its approach. The implications of the re-criminalisation were horrendous. Those who came out now feared about being apprehended at any time. It was bound to go.
We did every thing to set it aside. A large number of articles were written to the effect that Koushalwas wrong. We filed review petitions, which were dismissed. Then we filed curative petitions which are still pending.
The first knock to Koushal came with the NALSA judgment. Carefully written and not overstepping its jurisdiction (as it side stepped Koushal), it granted gender recognition on a self-identification basis to the transgender communities. That was one wicket down in three-wicket match.
The other major knock on Koushal was the Privacy judgment of Puttaswamy. The Supreme Court through judgments of different judges in that case held that the treatment of privacy in Koushal was wrong. Now it was only a formality to get victory. In fact it was, thus, a foregone conclusion. The questions asked by the judges in the Supreme Court in Navtej Johar only confirmed this.
Thus the verdict of the Supreme Court is not unexpected. But it is a watershed moment in the history of our country.
As the Supreme Court states the judgment is only the first step. It will throw up several challenges on equality and non-discrimination. Suppressed for a long time, the LGBTQI communities will rightly demand their rightful share in all spheres of life, in employment, in education all other spheres, both in the public, but especially the private sector, for which there is no law to address discrimination at the moment. Anti-discrimination and equality being the core Human Rights and overarching value, there is no reason that why a general anti-discrimination law should not be put in place for the private sector. That will shape lives for all.
Similarly, the law on rape is inadequate to address non-consensual sex other than the binary man-woman sex. The same goes for sexual harassment, which is again gender specific. There will be a push for that too. This will again affect all us in our lives.
The demand for a same-sex marriage law is bound to come. That is a contentious issue in all countries. Though that may take time in coming, civil partnership law can easily be brought in as an interim measure.
The lesson from the history of the 377 case from 2001 onwards shows that if justice is on your side and you are ready for the long haul and stick to your guns and are persistent, you will succeed in the end.
The judgment of the Supreme Court also has a lesson for judges. They should be ready to correct a wrong judgment when they come across a wrong judgment of theirs. This has to be followed for other areas also, including issues like death penalty and anti terror laws. Thus, the 377 judgment affects us all not only in the values that it enunciates and reiterates from our Constitution but also in the consequences that are bound to follow.
Anand Grover is a Senior Advocate and the Director of the Lawyers Collective. He and his team in the Lawyers acted for Naz Foundation started the challenge to Section 377 in the Delhi High Court in 2001 and continued right upto the end till final verdict today.
Tripti Tandon is the Deputy Director of the Lawyers Collective.